234 U.S.

117
34 S.Ct. 889
58 L.Ed. 1243

COMMONWEALTH OF VIRGINIA
v.
STATE OF WEST VIRGINIA.
No. 2, Original.
Argued April 16, 17, 1914.
Decided June 8, 1914.

Mr. A. A. Lilly, Attorney General for West Virginia, and Messrs. John H.
Holt, Charles E. Hogg, and V. B. Archer, in support of the motion.
Messrs. William A. Anderson, Randolph Harrison, John B. Moon, and
Mr. John Garland Pollard, Attorney General of Virginia, opposed.
Messrs. Sanford Robinson and Holmes Conrad also apposed.
Mr. Chief Justice White delivered the opinion of the court:

This case, which was begun in 1906, was elaborately argued in 1907 on a
demurrer, which was overruled. 206 U. S. 290, 51 L. ed. 1068, 27 Sup. Ct. Rep.
732. It was again argued in 1908 on a motion to appoint a master. 209 U. S.
514, 52 L. ed. 914, 28 Sup. Ct. Rep. 614. Before that officer there was an
extended hearing, and a full report of all the matters involved was filed in
March, 1910. It was then argued on a motion to take further testimony, and was
ultimately heard in an argument which extended many days, every party in
interest being represented, in the month of January, 1911.

Notwithstanding these facts, when in March, 1911, the court came to decide the
controversy, although it fully reviewed and passed upon the fundamental
issues, as its obvious duty required it to do, and fixed the principal sum due by
the state of West Virginia to the state of Virginia, in view of the consideration
due to the parties as states, and that the cause was, as then said, 'no ordinary
commercial suit, but, . . . a quasi-international difference referred to this court
in reliance upon the honor and constitutional obligations of the states concerned

rather than upon ordinary remedies,' the controversy was not completely and
irrevocably disposed of, but was left open for a time not specified, to the end
that any clerical errors that might have crept into the calculations of the sums
due could be corrected, and to give the states time to consider the subject of
liability for interest in the light of what had been decided, and to agree as to the
rate and period of the interest to be paid on the principal sum which was
determined. 220 U. S. 1, 55 L. ed. 353, 31 Sup. Ct. Rep. 330.
3

On the convening of the court in the following October, 1911, a motion was
made on behalf of the state of Virginia to proceed at once to a final decree.
Listening to the suggestion of the state of West Virginia to the effect that it
desired further time to consider the subject, and in view of the public
considerations which had prevailed when the decree was entered, the motion of
Virginia was overruled. 222 U. S. 17, 56 L. ed. 71, 32 Sup. Ct. Rep. 4.

Yet further, when, in November, 1913, another motion on the part of Virginia
was made to set the case down to be finally disposed of at once upon the
statement that no agreement between the parties was possible, again giving
heed to the request of West Virginia, through its constituted officers, for a
postponement for a stated time, and to the statement that they were engaged in
an honest endeavor to deal with the controversy, and, if possible, to come to an
agreement as to the subjects left open, the motion of Virginia was again refused
(231 U. S. 89, 58 L. ed. , 34 Sup. Ct. Rep. 29), and as it was possible to
give to the state of West Virginia all the time which that state, in resisting the
motion, asked, and yet secure against the possibility of the hearing being
carried over to another term, the case was assigned for hearing on the 13th of
April of this year. When that day was reached, the state of West Virginia, in
accord with a motion filed some days before, prayed leave to be permitted to
file a supplemental answer asserting the existence of credits which, if properly
considered, would materially reduce the sum fixed as due to the state of
Virginia, the said answer in addition asserting various grounds why interest
should not be allowed in favor of Virginia and against West Virginia on the
sum due. Resisting this request, the state of Virginia insists that the items
embraced in the supplemental answer asked to be filed had in effect already
entered into the considerations by which the principal sum due was fixed, and
that if not, the case should not be postponed for the purpose of permitting the
rights urged in the answer to be availed of because every item concerning such
alleged rights was proved in the case before the master, was mentioned in his
report, and was known or could have been known by the use of ordinary
diligence by those representing West Virginia. And it is this controversy we
now come to dispose of.

Without intimating any opinion whatever as to whether the items with which
the proposed supplemental answer deals entered into the processes of
calculation or reasoning by which the sum due was previously fixed, and
moreover, without intimating any opinion as to how far the items embraced in
the answer could serve as credits upon the sum previously found due, and
therefore to that extent reduce the amount, we think it is obvious that most of
the items embraced in the answer were contained in the master's report, and in
any event all were available then for every defense now based upon them if
their consideration had been pressed in the aspect and with the assertions of
right now made.

The question then is, Under these conditions ought the permission to file the
supplemental answer be granted? We think it must be conceded that in a case
between ordinary litigants the application of the ordinary rules of legal
procedure would render it impossible, under the circumstances which we have
stated, to grant the request. We are of the opinion, however, that such
concession ought not to be here controlling. As we have pointed out, in acting
in this case from first to last the fact that the suit was not an ordinary one
concerning a difference between individuals, but was a controversy between
states, involving grave questions of public law, determinable by this court under
the exceptional grant of power conferred upon it by the Constitution, has been
the guide by which every step and every conclusion hitherto expressed has
been controlled. And we are of the opinion that this guiding principle should
not now be lost sight of, to the end that when the case comes ultimately to be
finally and irrevocably disposed of, as come ultimately it must, in the absence
of agreement between the parties, there may be no room for the slightest
inference that the more restricted rules applicable to individuals have been
applied to a great public controversy, or that anything but the largest justice,
after the amplest opportunity to be heard, has in any degree entered into the
disposition of the case. This conclusion, which we think is required by the duty
owed to the moving state, also in our opinion operates no injustice to the
opposing state, since it but affords an additional opportunity to guard against
the possibility of error, and thus reach the result most consonant with the honor
and dignity of both parties to the controversy.

Because of these convictions, we therefore make the following order:

That the motion on the part of the state of West Virginia to file the
supplemental answer be and the same is hereby granted; and that the averments
in such answer be and the same shall be considered as traversed by the state of
Virginia; that the subject-mater of the supplemental answer as traversed be at

once referred for consideration and report to Charles E. Littlefield, Esq., the
master before whom the previous hearings were had, with directions to hear
and consider such evidence and testimony as to the matters set forth in the
supplemental answer as the state of West Virginia may deem advisable to
proffer, and such counter showing on the part of the state of Virginia as that
state may deem advisable to make. The report on the subject to embrace the
testimony so taken and the conclusions deduced therefrom, as well as the views
of the master concerning the operation and effect of the proof thus offered, if
any, upon the principal sum found to be due by the previous decree of this
court. Nothing in this order to vacate or change in any manner or in any
particular the previous decree, and the same to stand wholly unaffected by the
order now made or any action taken thereunder until the examination and report
herein provided for is made and this court acts upon the same. It is further
directed that the proceedings before the master be so conducted as to secure a
report on or before the 2d Monday of October, 1914.